Expert Witness Blog

Defendant Marie Lindor, who was sued by the Recording Industry for allegedly infringing on their exclusive rights by downloading, distributing and/or making available for distribution certain sound recordings using an online media distribution system, has moved to exclude the trial testimony of the RIAA's security expert witness, Dr. Doug Jacobson. Ms. Lindor argues that the expert witness' deposition testimony establishes that his trial testimony could not meet the standards for reliability of expert testimony prescribed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993) and Federal Rule of Evidence 702.

The interesting letter brief can be read in its entirety here: letter brief

Bus expert witness Charles Scalia, owner of Scalia Safety Engineering of Madison, testified that the 78-year-old driver of a bus that slammed into an overturned semitrailer truck, killing five people 18 months ago, had plenty of time to stop if his recognition of the hazard and reaction time were normal.

According to the Winona Daily News, Scalia testified:

Normal reaction time for a driver seeing a hazard is 1.6 seconds, including time to perceive a problem, consider a course of action and start the reaction, Scalia said. The vehicle response time is typically .3 seconds, he said, making for a total reaction time of 1.9 seconds.

Scalia recreated the accident, and found the overturned semi, assuming some light from the bus’ headlights was reflecting off it, would be recognizable for a driver with normal vision at about 500 feet away.

Given that, a bus going 65 mph would have traveled 181 feet during the reaction time. At full braking with normal brakes it would take 235 feet to stop the bus, leaving the bus still 84 feet from the semi, he said.

At 71 mph, the estimated actual speed of the bus, which was filled with 44 band students, teachers and chaperones, it still stops 20 feet from the truck, Scalia testified.

Patience in Educational Marketing

Like all marketing, writing an expert witness article is not an instant gratifier. Although it has happened, do not expect your phone to immediately start ringing once your article appears. Writing an article does trigger the law of reciprocity. If you give the attorney something of value, the attorney will want to give you a call when the need arises. Your investment of your time to create a well-written article may pay off in a lucrative case retention.

Your expert witness article should be geared to the attorney who would possibly hire you. In writing for your target market, remember, attorneys are generally impatient, and want usable information that is easy to digest. Therefore, the scope of the article should be narrow with a clear focus, written in a straightforward and clear manner. The style should be as non-technical as possible. Short paragraphs and sentences are usually preferred. Short subheads should be used to break the copy in longer articles.

Prior to submission, have someone competent proof read your article. No matter how much knowledge you have, the article will be rejected if it is poorly written. Indeed, if writing is not your forte’, consider having a co-writer (or even a ghost writer) help to convey your knowledge about the subject matter.

Prior to submitting your expert witness article, learn what types of articles are generally accepted by editor. Request a copy of the publication be sent to you, and read the articles that were previously published. You might want to call and speak to the editor directly before submitting your article. Ask the editor what he or she looks for when reviewing submitted articles. This will aid in writing your article in a format and style that is most acceptable to the editor.

Know the formatting guidelines for submission. Many bar association’s websites contain detailed format guidelines for articles. For example, the Texas Bar Journal requires all articles be double spaced. In contrast, The Wyoming Lawyer wants single spaced articles using 12-point Times font. Some publications want the articles submitted on paper – others request it electronically. A few minutes of research will prevent your article from being rejected for formatting reasons.

When writing your expert witness article, be aware of themes and publication calendars. For example, the Defense Research Institute traditionally uses “product liability” as its theme for its December issue of the “For the Defense.” Experts with an article in this magazine would have their information circulated to over 30,000 defense attorneys.

Your article could also be published on legal websites. For example, the Law Librarians Research Exchange (www.llrx.com) accepts articles and sends out emails to legal professionals about those articles. Another idea is to identify attorneys in your subject area (by looking up their practice area on the Internet), and sending to them your article along with your contact information, with a note stating simply: “This article may be of interest to you. Please contact me if I can ever be of service to you.”

There is a wide array of publications that might publish your expert witness article. Nationally, some examples include “Trial Magazine,” “The National Law Journal,” “The ABA Journal,” and “Lawyer’s Weekly.” On the state level, there are legal magazines such as “Nevada Lawyer,” “Minnesota Lawyer,” and “New York Law Journal.” In addition, virtually every state bar association has a legal newspaper or magazine. For example, you could reach attorneys in California through the “California Bar Journal” or trial attorneys on the East Coast through the New York Trial Lawyers Association’s “Bill of Particulars.” Most state bar associations also have “sections” (such as litigation, real estate, tax, and employment, to name a few) that have newsletters or legal publication where your article could be published. Also, there are literally hundreds of “specialty” bar associations, such as the “National Association of Environmental Law Societies” and “Criminal Bar Association.” Searching on the Internet for a bar association related to your expertise could lead you directly to your target market.

Another approach is to write your article on how to cross examine the opposing expert in your field. Many such articles are published in legal magazines. In this type of article, you could give advice on the following questions:

• What questions should be asked that will open doors to more information, or close doors on the opposing expert’s opinion on a particular issue?
• How can an attorney ferret out information from an opposing expert? What may an opposing expert be hiding?
• Are there certain scientific methods that are generally used by experts in this field? Are there different methodologies that could be used?
• Are there standards in your industry that an expert should be aware of?
• What documents should be used in cross examination?
• Are their certain questions that you know are difficult for an opposing expert to answer?
• What traps can be set for the unskilled opposing expert?

Providing answers to these types of questions will help get your article published, and attract attorneys to you.

Writing an article is one of the best educational marketing tools available to you as an expert witness. In deciding what topic about which to write, answer questions such as these in your article:

• What are the key issues in your field, and how should an expert be able to address them?
• What should an attorney know when they have a case in this area?
• What things should be sought in discovery? What documents or records should be requested?
• Are there chain-of-custody issues? Sequencing issues? Scope of work issues?
• What standards of care should be used?
• What potential defendants should be identified?

In addition, make it easy for attorneys to know what questions to ask when retaining an expert, and provide information in your article that will lead them to contacting you (without making direct references to yourself). Some questions you could provide answers to include:

• Are their specific experiences an expert in your field should have?
• Is there specialized training the expert should have in this area?
• Are there specific organizations to which the expert should belong?
• Are there certain designation or certificates an expert should have?
• Should the expert have published in this area?
• Are there “specialist” designations in your field of which an attorney should know?
• How is an expert in your field licensed? Is the license good for all 50 states? Are there a certain number of years of education one must complete?
• Are there common misconceptions in your field? For example, some attorneys might not realize that a chiropractor is not necessarily a medical doctor.
• What should competent experts in your field be able to do? Site inspections? Examinations? Create exhibits? Record review?
• What type of expert should an attorney avoid?

Attorneys will likely save such articles that answer these questions, and use them for future reference.

University of Missouri-Columbia law professor Phillip G. Peters, who examined 17 years of medical malpractice cases, is about to publish his findings in a law review article entitled "Doctors & Juries." In it, he looked at various studies where independent expert witnesses reviewed cases. He found that juries agree with these independent experts over 80% of the time, suggesting that juries are not that far off the mark. However, looking at this statistic the other way, physicians would be alarmed to find out that there is up to a 20% chance that they will be found liable in a case that lacks merit in the eyes of independent experts. Overall, juries are so reluctant to hold physicians liable that they render defense verdicts in half of the cases that independent medical experts think plaintiff should win.

Professor Peters concludes that his research shows that it is very difficult for plaintiffs to win a medical malpractice case at trial. This would largely explain why so many medical malpractice cases are settled outside of court.

A new magazine called "Plaintiff magazine" will debut this summer. Published by the same company that issues "The Advocate" magazine, the target market will be plaintiff attorneys in Northern California.

The magazine has announced that its March 2008 issue will focus on expert witnesses.

As stated by the publishers of Plaintiff:

"Plaintiff [magazine] is a nuts and bolts journal for trial practice. Every issue will bring readers practical, instructive articles on the representation of plaintiffs, law office management and legal services marketing. Each month, experienced attorneys will present informative articles on a different theme, revealing how they craft complaints, maximize discovery and use voir dire effectively to win actions in such areas as employment, auto accidents, medical malpractice, products liability and insurance bad faith. Mediators and arbitrators will discuss how these alternative forums can be used to a plaintiff's benefit. Plaintiff will not be a stuffy law journal that sits on the library shelf, but a hands-on magazine that readers look forward to each month."

Those who work as expert witnesses might want to contact the editor to inquire about having an article published in the March 2008 issue.

Dr. Andreas A. Theodorou, a pediatric expert witness, testified that the 2005 death of a 16-month-old child likely stemmed from a deliberate violent injury. Emily Mays died in Aug. 24, 2005, while in foster care. Her injuries included a subdural hematoma, or bleeding on the brain. The foster parents told authorities that Emily hit her head when she fell against a changing table in their home.

As reported in the Tuscon Citizen, the expert witness testified:

"The force it takes for a subdural hematoma is substantial, like falling several stories, being flung to a wall or a high-speed auto accident. It's not caused by rolling off a changing table or by a linear fall of a few feet."

His testimony will be key to determine if charges should be filed against Emily's foster parents, Randall and Penny West.

The Indiana Supreme Court was scheduled to hear arguments last week on whether state courts should be required to pay for translators to assist defendants who do not understand English. This brings up an interesting debate as to whether state courts should be required to pay for expert witness fees as well.

Many state courts, including Indiana, will pay for some expert witness fees for defendants who cannot afford them. This is usually the case when the defendant is represented by a public defender. When the defendant has his or her own private attorney, most courts will not allow the state to pay for expert witnesses. As stated by one judge, "if you can afford your own attorney, you can afford your own expert witnesses."

If you are an expert witness writing an article, it is imperative that you give the attorney something of substance. As you write your article, continually ask, “Would this information be helpful to an attorney who had a case in this area?” If you are not sure, ask an attorney to provide feedback. A managing editor of a large legal publication stated: “We do not accept sales pieces. We want substance. I advise authors to submit something that will be valuable to readers who want to know more about a particular subject matter.”

Your article should not be self promotion. Do not talk about your qualifications directly, and do not use the word “I” or “me.” Instead, demonstrate your knowledge by authoritatively discussing issues involved with your area of expertise. Don’t tell the attorney you are the expert – show them you are by competently discussing the subject matter.

As an expert witness, one of the best ways to get known to a large number of attorneys is to demonstrate your expertise through a well written article. This type of “educational marketing” is also one of the most cost efficient marketing avenues.

Why Writing Articles is Important

Attorneys are only paid when they are billing a client for legal work. Therefore, most attorneys do not take the time to learn what questions to ask before retaining an expert. Make it easy for attorneys. Inform them what they should be looking for. When you help attorneys understand your area of expertise, you are leading the attorney to contacting you when they receive a case in your field.

Articles have a desired “stickiness” to them – attorneys hang onto them. It is common for attorneys to save articles that are helpful to their practice, and to make copies for other associates. Partners often make copies of the articles, and pass them down to younger associates. Attorneys will often take their file of such articles when they change firms. Make sure the attorney takes your information with him or her by writing a valuable article.

Continue reading "Write an Article to Improve Your Expert Witness Marketing - Part 1" »

Expert witness should conduct necessary tests and investigation, and not just rely on others or risk being excluded. In Mitchell v. Gencorp, Inc., 165 F.3d 778, 779 (10th Cir. 1999), the plaintiff contended he had developed leukemia from regularly working in an unventilated room where hazardous materials were stored. The court excluded the industrial hygienist expert, noting that the expert merely studied photographs of the room and material-safety data sheets listing the chemicals stored there. The expert “never visited the flammable room and conducted no air tests to demonstrate [the plaintiff’s] level of exposure to the chemicals. Moreover, he did not attempt to re-create the level of exposure through computer modeling.”

It is commonly understood that despite the fact that one party retained and paid for the services of an expert witnesses, experts are supposed to testify impartially in the sphere of their expertise. See Selvidge v. U.S. 160 F.R.D. 153. However, the court in Wilson v. City of Chicago stated that the Federal Rules of Evidence do not require experts to be impartial. (6 F.3d 1233, 1238).

If experts are not advocates, at the very least they advance the cause of the party that retained them - otherwise they would not be there. By the time of the trial, the retaining attorney knows how the expert will testify. It is unlikely that the retaining attorney would call the expert if the expert did not testify in favor of the retaining party.

Prosecutors in the Phil Spector murder case filed a motion requesting the defense team be ordered to disclose the fees that Spector's 13 expert witnesses are being paid before they take the stand in the music producer's trial.

In papers filed with the court, prosecutors claimed they had previously asked Spector's attorneys to see "fee schedules, billing schedules, invoices, canceled checks, cash payments, per diem payments, employment contracts and any other documentary or oral evidence of remuneration or compensation of any form made to each of your experts."

In an email dated March 15, 2007 that prosecutors attached to the motion, Spector's attorney responded that the prosecution's request for financial records was "an appropriate one for cross-examination."

Proscecutors disagree. As reported in California's Orange County Register:

"The defense position is wrong," Jackson wrote in his court papers. "If required to wait until these witnesses testify, the court will be subject to needless delays in the production of verifying documents to determine the credibility and/or bias of these witnesses, owing to the fact that all but one of the defense experts are from states other than California."

Expert witness marketing is a conservative investment. It is not an instant gratifier. As marketing expert Jay Levinson states, “Don’t expect marketing to suddenly double your sales. Although this has happened, it is unusual. Recognizing this, you’ll feel good about making a conservative investment in marketing the next year, and the year after that. If you expect more from marketing, chances are you’ll be disappointed. If you expect only that, chances are you’ll be gratified. And successful.” If you want to be successful as an expert witness, will you truly save money by not marketing? You will in the way that stopping your wristwatch saves time.

Your goal in marketing is to consistently educate legal professionals about your qualifications and abilities to position yourself in their mind as the expert witness to contact when a case falls within your expertise. There are an endless number of ways to market your qualifications. The key to expert witness marketing is commitment. Once you have chosen your marketing tactics, stay consistent. Consistency breeds familiarity with attorneys, familiarity breeds confidence in your abilities, and confidence will lead to you being retained in more cases. Do not drop out of the public eye for long periods of time. Remember, attorneys hire expert witnesses based on the cases that come into their office. Just because the attorney does not hire you today does not mean that he or she will not hire you tomorrow.